The crime of murder is generally considered the most serious offence in criminal law.
But what exactly is the offence of murder? What are the ‘elements’ (or ingredients) that the prosecution must prove beyond beyond reasonable doubt before the offence can be established? And what are the available legal defences?
Here’s a summary of what the law says about the offence of murder in states and territories across Australia, as well as the legal defences that, if raised on the evidence, the prosecution must disprove to the same high standard (of beyond reasonable doubt) before a person can be found guilty.
What is murder?
The offence of murder has an interesting history, existing as a crime since antiquity with the fundamental elements of the offence evolving over time. Arguably the most influential definition of murder, which forms the common law definition, comes from Sir Edmond Coke, who defined murder as:
when a person of sound mind and discretion, unlawfully killeth any reasonable creature in being, and under the king’s peace, with malice aforethought either express or implied
The core elements of the common law definition of murder are:
- The accused committed acts which caused the victim’s death;
- The accused committed those acts voluntarily;
- The accused committed those acts with ‘malice aforethought’, which has been construed as:
- intending to kill someone or cause them really serious injury; or
- knowing that it was probable that death or really serious injury would result.
In some Australian jurisdictions the elements of murder are left to the common law definition, whilst in other jurisdictions the elements of the offence are spelled out explicitly or varied by legislation (a process known as ‘codification’).
It should be noted that there are many types of offences related to unlawful killings. For example, constructive murder, sometimes called ‘felony murder’, is where another person’s death occurred during or immediately after the defendant or an accomplice committed, or attempted to commit, a criminal offence. Below will be focusing only on the general offence of murder in each State or Territory rather than these variations.
The offence of murder in New South Wales
In NSW, the offence of murder is outlined under section 18 of the Crimes Act (NSW) which states:
(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.
(b) Every other punishable homicide shall be taken to be manslaughter.
(a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section.
(b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only.
For the purposes of this provision, ‘grevious bodily harm’ means ‘very serious harm’, and includes but is not limited to:
- Any permanent or serious disfigurement,
- The destruction of a foetus, other than by a medical procedure, and
- Any grievous bodily disease.
As noted above, the maximum penalty for this offence is imprisonment for life or for 25 years.
The offence of murder in Victoria
In Victoria, the offence of murder refers to the common law definition, however the punishment for murder is outlined under section 3 of the Crimes Act 1958 (VIC) which states:
(1) Notwithstanding any rule of law to the contrary, a person convicted of murder is liable to—
(a) level 1 imprisonment (life); or
(b) imprisonment for such other term as is fixed by the court—
as the court determines.
(2) The standard sentence for murder is—
(a) 30 years if the court, in determining sentence, is satisfied that the prosecution has proved beyond reasonable doubt that—
(i) the person murdered was a custodial officer on duty or an emergency worker on duty; and
(ii) at the time of carrying out the conduct the accused knew or was reckless as to whether that person was a custodial officer or an emergency worker; and
(b) in any other case, 25 years.
The offence of murder in Queensland
In Queensland, the offence of murder is outlined under section 302 of the Criminal Code (1899) which states:
(1) Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say—
(a) if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm;
(aa) if death is caused by an act done, or omission made, with reckless indifference to human life;
(b) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
(c) if the offender intends to do grievous bodily harm to some person for the purpose of facilitating the commission of a crime which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such crime;
(d) if death is caused by administering any stupefying or overpowering thing for either of the purposes mentioned in paragraph (c) ;
(e) if death is caused by wilfully stopping the breath of any person for either of such purposes;
is guilty of “murder” .
(2) Under subsection (1) (a) it is immaterial that the offender did not intend to hurt the particular person who is killed.
(3) Under subsection (1) (b) it is immaterial that the offender did not intend to hurt any person.
(4) Under subsection (1) (c) to (e) it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.
The maximum penalty for this offence is outlined under section 305 of the Code, which states:
(1) Any person who commits the crime of murder is liable to imprisonment for life, which can not be mitigated or varied under this Code or any other law or is liable to an indefinite sentence under part 10 of the Penalties and Sentences Act 1992
(2) If the person is being sentenced—(a) on more than 1 conviction of murder; or
(b) on 1 conviction of murder and another offence of murder is taken into account; or
(c) on a conviction of murder and the person has on a previous occasion been sentenced for another offence of murder;
the court sentencing the person must make an order that the person must not be released from imprisonment until the person has served a minimum of 30 or more specified years of imprisonment, unless released sooner under exceptional circumstances parole under the Corrective Services Act 2006 .
(3) Subsection (2) (c) applies whether the crime for which the person is being sentenced was committed before or after the conviction for the other offence of murder mentioned in the paragraph.
(a) the person killed was a police officer at the time the act or omission that caused the person’s death was done or made; and
(b) the person being sentenced did the act or made the omission that caused the police officer’s death—(i) when—(A) the police officer was performing the officer’s duty; and
(B) the person knew or ought reasonably to have known that he or she was a police officer; or
(ii) because the police officer was a police officer; or
(iii) because of, or in retaliation for, the actions of the police officer or another police officer in the performance of the officer’s duty;
the court sentencing the person must make an order that the person must not be released from imprisonment until the person has served a minimum of 25 or more specified years of imprisonment, unless released sooner under exceptional circumstances parole under the Corrective Services Act 2006 .
The offence of murder in the Australian Capital Territory
In the ACT, the offence of murder is outlined under section 12 of the Crimes Act 1900 (ACT) which states:
(1) A person commits murder if he or she causes the death of another person—
(a) intending to cause the death of any person; or
(b) with reckless indifference to the probability of causing the death of any person; or
(c) intending to cause serious harm to any person.
(2) A person who commits murder is guilty of an offence punishable, on conviction, by imprisonment for life.
As noted above, the maximum penalty for this offence is imprisonment for life.
The offence of murder in Tasmania
In Tasmania, the offence of murder (or ‘culpable homicide’) is outlined under section 157 of the Criminal Code (Tas) which states:
(1) Culpable homicide is murder if it is committed–
(a) with an intention to cause the death of any person, whether of the person killed or not;
(b) with an intention to cause to any person, whether the person killed or not, bodily harm which the offender knew to be likely to cause death in the circumstances, although he had no wish to cause death;
(c) by means of any unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person;
(d) with an intention to inflict grievous bodily harm for the purpose of facilitating the commission of any of the crimes hereinafter mentioned or the flight of the offender upon the commission, or attempted commission, thereof;
(e) by means of administering any stupefying thing for either of the purposes mentioned in paragraph (d) ; or
(f) by wilfully stopping the breath of any person by any means for either of such purposes as aforesaid–
although, in the cases mentioned in paragraphs (d) , (e) , and (f) , the offender did not intend to cause death, and did not know that death was likely to ensue.
The maximum penalty for this offence is life imprisonment.
The offence of murder in the Northern Territory
In the Northern Territory, the offence of murder is outlined under section 156 of the Crimes Code (NT) which states:
(1) A person is guilty of the offence of murder if:
(a) the person engages in conduct; and
(b) that conduct causes the death of another person; and
(c) the person intends to cause the death of, or serious harm to, that or any other person by that conduct.
The maximum penalty for this offence is outlined under section 157 of the Code and is imprisonment for life.
The offence of murder in South Australia
In South Australia, the offence of murder is defined as per the common law, however the punishment for murder is outlined under section 11 of the Criminal Law Consolidation Act 1935 (SA), noting a maximum penalty of life imprisonment.
The offence of murder in Western Australia
In Western Australia, the offence of murder is outlined under section 279 of the Criminal Code, which states:
(1) If a person unlawfully kills another person and —
(a) the person intends to cause the death of the person killed or another person; or
(b) the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or
(c) the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life,
the person is guilty of murder.
The maximum penalty for this offence for adults is outlined under section 279(4) which states:
(4) A person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless —
(a) that sentence would be clearly unjust given the circumstances of the offence and the person; and
(b) the person is unlikely to be a threat to the safety of the community when released from imprisonment,
in which case, subject to subsection (5A), the person is liable to imprisonment for 20 years.
Key terms related to murder in Australia
There are a number of key terms related to the offence of murder that need to be understood in order to determine whether a charge will be proven beyond reasonable doubt.
Killing a person
A person will be ‘killed’ for the purposes of the criminal law if an actions leads to the irreversible cessation of circulation of blood in the body, or the irreversible cessation of all function of the brain. Notably, a foetus is generally not considered a ‘person’ for the purposes of the offence of murder.
The offence of murder only applies to ‘unlawful’ killing. This means that if the law otherwise excuses the killing, say in the circumstances of fatal violence by military personal or law enforcement or as a result of a formal defence such as self-defence, a person is not able to be prosecuted for murder.
An act or omission is considered to have ‘caused the death’ of another if it was a ‘substantial or significant caused’ of the death, even if some other cause was also operating at the time.
An act or omission will have caused death unless there is a break in the chain of causation, which will only occur if the original injury is merely the setting in which the subsequent cause operates, or if the subsequent cause is so overwhelming that it significantly diminishes the relevance of the original cause.
Examples of where the chain of causation is not broken include:
- Where the victim refuses medical treatment on religious grounds,
- Where subsequent medical treatment is poor, unless the injury had almost healed, and
- Where the victim engaged in unconscious acts that led to death.
The prosecution must prove causation, and a defendant is entitled to an acquittal if the prosecution fails to do so.
For example, a defendant was found not guilty in a case where the prosecution was unable to disprove that an underlying disease was the cause of the complainant’s death.
Intentionally causing death
This means that you deliberately caused the other person’s death through your actions or failure to act or you deliberately caused ‘grievous bodily harm’, ‘really serious harm’ or ‘serious harm’ to another person, which led to their death.
Recklessly causing death
This refers to situations where you knew, or should have known, that your actions or omissions would probably result in another person’s death.
Defences to murder in Australia
The offence of murder will not be committed if a person did not unlawfully kill another or they did not have the appropriate guilty mind for the offence.
In circumstances where the prosecution is able to prove all of the essential elements of murder beyond all reasonable doubt, a number of legal defences apply to the charge, the most common of which is self-defence.. And it is important to be aware that if evidence raises the availability of self-defence, the prosecution must then disprove the defence beyond a reasonable doubt.
If the prosecution is unable to do this, the defendant must be found not guilty.
The defendant may also be found not guilty on the basis of mental health impairment or cognitive impairment (the ‘insanity defence‘).
Have you been charged with murder?
The profession-leading criminal defence team at Sydney Criminal Lawyers has been successfully defending allegations of murder for more than two-decades, including in circumstances where those accused of what is generally considered the most serious offence in criminal law have obtained advice from other criminal defence firms to plead guilty to murder, or to accept manslaughter charges.
So if you or a loved-one is suspected or has been charged with murder, call Sydney Criminal Lawyers anytime on 9261 8881 to get Australia’s most awarded and successful criminal defence firm on your side.